The Beef Debate – The Final Entry – Greg Replies

By Tom Goldstein
on May 27, 2005 at 2:05 pm

A few brief responses — and, more important, a link to our merits brief (http://www.abanet.org/publiced/preview/briefs/dec04.html#veneman), which explains in more detail why Erik’s position ultimately turned out to be “dead meat”:

First, let me confess to thinking that our government is a “worthwhile participant in the marketplace of ideas.” For better or worse, our government is continuously trying to influence how Americans think: it encourages us to be patriotic (especially in wartime), it tells us to obey the law, it tells us which foods to eat and not to smoke (see the Surgeon General’s Warning), and at the state and local level (deep breadth) it helps to educate our children on the values that our country is founded upon. There are a plethora of other examples (including the “Voice of America”), and of course the Constitution does expressly limit the government’s ability to speak on a particular matter (religion). But the notion that the government has no business in seeking to influence — or, as Erik puts it, “manipulate” — public opinion is simply unrealistic.

Second, I’m not sure what Erik means by “non-germane government speech,” but it cannot include speech under the Beef Act or similar programs. Speech under the Beef Act is directly “germane” to the government’s objective of stepping in to solve a market failure in the beef industry and collective action problem that necessitated a government-controlled, national promotional campaign to increase consumer demand for beef. (By the way, that program — which includes both non-speech and speech components — has by all economic measures been successful and, arguably, has never been more important given the challenges faced by the beef industry in the day of BSE, i.e., “mad cow’s disease.”) Erik seems to imply that the beef checkoff program is somehow not a legitimate government program, and that speech conducted under the program is therefore not legitimate, but — although he seems to recognize that the government may speak on some issues (“germane” ones, I suppose) — he offers no justification for explaining why the government can’t speak to support products, like beef, that are key to the nation’s economic success.

One of the fundamental problems that those, like Erik, who oppose the government-speech doctrine have is in delineating when the government may speak and when it may not. They necessarily recognize — as did Erik in his earlier post — the “necessity for some forms of government speech.” But they cannot articulate any principled justification for which government speech is OK, and which is verboten. Conversely, one of the virtues of the government speech doctrine is that it leaves the government — and, more precisely, its democratically elected representatives — to determine which speech is appropriate, or when. That is a far more desirable regime than one in which the courts — under the guise of the First Amendment — are responsible for policing the government’s own speech.

Third, Erik’s fundamental First Amendment objection seems to boil down to what he calls the “structural purposes” of the First Amendment. Before addressing that objection, just for fun let’s look at the text of the First Amendment: it prevents Congress from passing a law that “abridg[es] the freedom of speech.” I think the Court correctly concluded that the Beef Act does not abridge the “freedom of speech” or, indeed, any speech — either insofar as it adopts a government message that hits the airwaves in the form of “Beef. It’s What’s for Dinner” ads, or insofar as it imposes a tax on the sale of cattle to pay for those ads. All citizens, including all cattlemen, remain free to oppose the government’s pro-beef message or add any additional private message to the market. (As Erik notes, that was also true in United Foods, but the constitutional harm in United Foods was forcing the payment of private speech, not government speech.)

As a “structural” matter, the fundamental purpose of the First Amendment is of course to ensure that the government does not interfere with private speech. To be sure, the First Amendment also seeks to promote speech on matters of public concern in general. But when, as here, the government speaks out on an issue in a manner that simply adds another voice to the marketplace, it does not interfere with the structural values of the First Amendment. Moreover, Erik’s reliance on the “structural purposes” of the First Amendment overlooks a more fundamental structural consideration concerning the operation of our government.

As the Court observed in one of Erik’s favorite cases — Keller — “if every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it would be radically transformed.” That is the fundamental “structural” consideration underlying the government speech doctrine. Like any other government action, government programs designed to lend the government’s voice to the marketplace remain subject to constitutional constraints like the Due Process Clause, the Equal Protection Clause, and even the Religion Clauses of the First Amendment. But the Supreme Court has correctly recognized that Speech Clause of the First Amendment does not impose any structural limit on what the government can say through a program like the one at issue in Johanns.

Finally, Erik’s reliance on the forum cases and viewpoint discrimination principle is simply misplaced. Although he objects to the “notion that viewpoint discrimination does not apply in the government speech context,” that rule is already settled. As the Supreme Court stated in Rosenberger, the Court has “permitted the government to regulate the content of what is or is not express when it is the speaker.” Similarly, in Velazquez the Court reaffirmed “that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker.” So too, in Southworth, the Court emphasized that the government may spend “funds raised . . . for speech and other expression to advocate and defend its own policies.” In short, when the government is speaking, it can decide the message. Importing a forum analysis into the government speech context would lead to the absurd result that the government could never take a position on an issue without offering the alternative viewpoint. That is a self-defeating principle of governance.

Thanks to Erik and SCOTUSblog for this debate. Whatever else is true, the Johanns case — which I think both Erik and I agree is a major constitutional decision — will provide much to talk about for years to come.